Ever since running for governor, Gov. Bruce Rauner has sought constitutional reforms, including legislative term limits and independent legislative redistricting, that are popular with voters but opposed by legislators. To implement these reforms, the Governor will need to bypass the Legislature’s veto power over constitutional amendment.

Illinois’ Constitution provides three legislative bypass mechanisms for constitutional amendment: the periodic (once-every-20-years) constitutional convention referendum, the 1-step constitutional initiative, and the 2-step constitutional initiative. The 1-step initiative uses an initiative to propose reforms directly to voters for approval. The 2-step initiative uses an initiative to call a constitutional convention, which does the proposing. Both types of initiative are limited to legislative branch amendments and require the same threshold number of signatures to get on the ballot.

The periodic referendum bypass is ruled out because the next time Illinois voters will have the opportunity to vote on one won’t be until 2028 — long after Rauner will have left office. Of the two remaining options, Rauner has pursued the 1-step but not the 2-step bypass.

In Illinois, the 2-step bypass is an implied rather than enumerated constitutional provision. Many constitutional powers are only implied. For example, many state constitutions throughout U.S. history haven’t explicitly provided for the legislature to call a constitutional convention. Nevertheless, legislatures in such states have called conventions, arguing that calling a convention is an inherent power of the people. If a legislature can call a convention on behalf of the people, the people can call a convention on behalf of themselves.

One reason the initiative hasn’t been used to call a constitutional convention is that it is relatively new, primarily an innovation of the 20th Century. Illinois, for example, didn’t get the initiative until 1970.

A more fundamental reason is that compared to the 1-step initiative, the 2-step initiative is perceived to be more inconvenient and risky.

The last step in the 2-step initiative is a convention, which adds years of delay, as it requires three popular elections — to vote for a convention, to vote for convention delegates, and to vote on convention proposals.

Reform proponents must give up control, as they have no direct control over a convention’s proposals.

Referendums to call a convention are likely to provoke very powerful opposition, including the legislature, special interest groups who prefer to exercise power via the legislature, and the you-scratch-my-back-I’ll-scratch-yours coalition partners of these opponents.

Nevertheless, a constitutional convention has some advantages. For example, due partly to greater flexibility, superior public deliberation, and more democratic legitimacy, amendments proposed by convention have been far more likely than those proposed directly by initiative to be approved by courts.

An initiative to call a constitutional convention protects the most fundamental of all democratic rights — the right that underpins all other rights— which is the sovereign people’s right to alter their constitution. Thus, when convention opponents sue — as they surely will — to prevent the people from exercising this right, courts can subject their arguments to the same type of strict scrutiny they would arguments to block political speech protected by the First Amendment.

Constitutional reforms that a legislature will invariably oppose because they conflict with its institutional self-interest require legislative bypass mechanisms, such as the constitutional initiative, to implement. To date, Rauner has pursued the 1-step initiative to bypass the legislative bottleneck. As a complementary strategy — both types of initiative can be on the ballot at the same time — he should consider a 2-step initiative.

Sometimes the hardest route to your goal is the best one. As a backstop to court opposition, a constitutional convention may be the most realistic way to fix Illinois’ dysfunctional government.

— J.H. Snider is the president of iSolon.org, publisher of the State Constitutional Convention Clearinghouse, and former fellow in the Political Science Department at Northwestern University, Evanston.

Source: Snider, J.H., Rauner’s best route may be constitutional convention, State Journal-Register, December 27, 2015